JUSTICE PLEICONES: Appellants were jointly tried and convicted of two
counts of taking a hostage and one count of carrying a weapon while an inmate.
Each received two consecutive sentences of life without the possibility of parole
for the hostage-takings, and a consecutive ten-year sentence for the weapons
offense. On appeal, [1] appellants contend the trial
court erred in dismissing a juror who had indicated he would not take a religious
oath. We agree, and reverse and remand.

FACTS

Following jury selection,
the trial judge announced that he had been informed that one of the jurors selected
(Juror 126) told court personnel that he thought there were “some constitutional
problems about having to swear.”

Juror 126 was brought into the courtroom. The trial judge had the
clerk of court read the oath that she administers to jurors to Juror 126:

You shall well and truly try the issues joined in the case
and a true verdict give according to the evidence so help you God.

Juror 126 stated he had trouble
with the phrase “so help you God” because he was not religious, and because
he thought it violated the constitutional requirement of separation of church
and state. The judge asked Juror 126 if he would have trouble taking the oath.
The juror responded by asking whether he had an “alternative to doing that?”
The judge answered, “Well, if you sit on the jury, you have to take that oath.”
Juror 126 then said, “I’m not comfortable with that.”

Juror 126 was excused from the courtroom,
and the judge ruled:

And our South Carolina Supreme Court has said that before
you can be a juror, our law says before you can be a juror, you’ve got to take
that oath and that is the bottom line. Before you do anything else, that’s
the bottom line. He’s got to be able to take that oath. And if we come in
here first thing tomorrow and she starts giving the oath and he says he is not
going to take it, I have no choice but to eliminate him as a juror.

When court resumed the next day, the trial judge
excused Juror 126 and replaced him with an alternate juror. Appellants’ attorneys’
objections to the juror’s removal were overruled.

ISSUE

Whether the trial judge erred in dismissing a juror who
was unwilling to take a religious oath?

ANALYSIS

The State concedes that South Carolina cannot,
consonant with the federal constitution, condition juror service upon the taking
of a religious oath. [2] See 47 Am. Jur. 2d Jury § 177 (1995).
In fact, South Carolina law specifically permits a juror to make an affirmation
rather than swear an oath. S.C. Code Ann. § 14-7-1130 (Supp. 2002).
[3] The trial judge erred in holding that jurors were required to take
the oath used by the clerk of court,
[4] and in dismissing Juror 126.

Appellants were denied a fair and impartial jury
when the trial judge erroneously excused a juror who objected to taking a religious
oath. Accordingly, their convictions and sentences are reversed, and the cases
remanded.

REVERSED AND REMANDED.

TOAL, C.J., MOORE, WALLER, and BURNETT, JJ., concur.

[1] Appellants’ appeals were consolidated for oral
argument because they raised two identical issues. At oral argument, their
attorney conceded the second issue.

[3] An affirmation in lieu of an oath has been permitted
in South Carolina courts since at least 1731. See 1731 Act No. 522,
§ 28, reported in Statutes of South Carolina, vol. III, p. 281 (1838).

[4] The oath used here is a variation on the oath
contained in Form 3, the “Uniform Juror Information Pamphlet,” promulgated
pursuant to Rule 84, SCRCP.

[5] Juror 126 was improperly removed from appellants’
jury because of his religious beliefs. Where the jury that tries the complaining
party is affected by this type of constitutional error, the line of cases
which hold a defendant is entitled only to a fair and impartial jury but has
no right to trial by a particular jury, do not apply. See State
v. Adams, supra.